A three-judge panel on the U.S. Seventh Circuit Court of Appeals questioned whether the plaintiffs filing a lawsuit against the Obama Presidential Center (OPC) had federal standing during oral arguments Thursday, and seemed skeptical of their case that the city is violating the public trust doctrine.

The hearing was the latest salvo in the suit, filed in 2018 by the advocacy group Protect Our Parks (POP). Last June, a district judge dismissed the suit, ruling that there was no violation of the public trust doctrine that governs the preservation of public land. POP appealed the case and brought on Richard Epstein, a well-known professor at the University of Chicago Law School, on a pro bono basis.

Thursday morning, Amy Coney Barrett, the panel’s presiding judge, grilled both Epstein and Benna Ruth Solomon, deputy corporation counsel for the city, over whether the lawsuit should be heard in federal court. “Why do the plaintiffs have standing even to press the public trust doctrine claim? I understand that they would have standing in Illinois state courts, but Illinois state courts have their own thing,” she said.

Both Epstein and Solomon argued that POP did have standing. In the city’s case, that appeared to be partly out of a desire to end the two-year-long legal morass. “We would stress providing public interest in enabling the city to move forward on this important public project, free of the cloud of litigation,” said Solomon. “There is just no reason to send a state law issue with a clear answer to the state court at this late date.”

On Thursday afternoon, a few hours after the end of the hearing, the court ordered that both POP and the city must file briefs showing why the plaintiffs have standing in federal court. The briefs are due in two weeks.

Another point of contention during the hearing was whether it was appropriate, as Epstein argued, for the court to analyze the costs and benefits of the OPC construction and the set of changes — such as the closure of Cornell Drive — that is planned alongside it. “If you’re talking about the actual intensity of use with respect to the park, what you’re doing in this particular case is essentially taking away probably 90 to 95 percent of the value,” he said.

The judges seemed skeptical of this line of reasoning, with Judge Michael Brennan asking, “If we were to apply that standard, how would courts be differentiated from zoning boards?” Barrett echoed this point, noting later that the justices would be “second-guessing the judgment” of the city around the OPC.

At the end of the hearing, Brennan asked Epstein whether the tests he suggested applied to the OPC’s use of Jackson Park would also hold if the center were to be constructed in Washington Park, POP’s preferred location. “The simplest way to put this is: in the cost-benefit analysis the dynamics are completely different,” said Epstein. “You do not have to wreck any road, you do not have to cut down any trees. You don’t have to do anything of the kind of disruptive nature, with respect to Jackson Park, when you go to Washington Park.”

He added that POP would not have brought a suit against the city if the OPC had been slated for Washington Park. (On Twitter, University of Chicago law professor Lior Strahilevitz, who has filed an amicus brief on behalf of the city in the case, singled out the moment, and characterized Epstein’s analysis as one that permits “any Illinois citizen (to) sue, delaying construction for years.”)

Solomon also rejected, in her portion of the argument, the idea that a form of cost-benefit analysis applies under Illinois public trust doctrine. “What controls is simply whether there is sufficient statutory authorization,” she said. “And after that — the inquiry into cost-benefits and benefit maximization and fair value — this court will scrutinize Illinois law in vain for any suggestion that these are the factors that the court considers.”

In an interview with the Herald last summer, Epstein argued that the transfer of land to the OPC constituted a giveaway of public land for private benefit. On Thursday, Solomon rejected this line of reasoning. “The Obama Presidential Center is a 501(c)(3) charitable organization similar to the foundations and institutions that run the other museums in Chicago parks,” she said.

“We’re taking parkland that used to be used simply as a park … and we will now have a park with other park purposes, namely the cultural and recreational benefits and opportunities that a park with a museum has,” she said. “It’s still a park, and it’s still park purposes.”

There is no timeline for when a decision will come down from the court, though Herb Caplan, head of POP, said he expects one “sooner rather than later.”

This story has been updated with news of the Thursday afternoon court order.

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(1) comment

This is a mid-rise building, 235 feet tall. It is situated at the edge of a sensitive nature area. Some eight hundred trees will come down, and we'll lose a significant portion of our historic Park. Why the Park when other locations, in the city, are available for this?

This does call for review, as it is yet another patronage-type project, suggested by a mediocre Mayor Emanuel, in an effort to piggy-back on Obama's Presidency. Sad he left nothing to remember him, by, outside of this.

We Chicagoans have been battling, since the days of Montgomery Ward, to maintain an open, clear, and free lakefront. This is yet another battle.

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